Experienced Probate Attorney Available in Lake Oswego, Beaverton & the Greater Portland Area
Diane has been proudly serving probate needs in the greater Portland area for 28 years. This includes all areas of Clackamas County: Lake Oswego, West Linn, Oregon City, Gladstone, Wilsonville, Milwaukie, Canby, Happy Valley, Boring, Eagle Creek, Beavercreek, Estacada, and Clackamas. In addition, Diane serves Tualatin, Tigard, Beaverton, Gresham, Sandy, Keizer, Sherwood, Troutdale, Hillsboro, Aurora, Woodburn, Salem, and every town in-between.
The Probate Process Is Simple
Some Oregonians view probate with dread, and they try to avoid it at all costs. They will spend hundreds, if not thousands, of dollars and many, many hours planning how to avoid it. In truth, there are few legal proceedings as cost-effective as the probate process. The probate process is designed to provide an orderly transfer of the deceased’s assets to the persons chosen to receive them, while protecting the interests of certain close relatives and creditors. It is a simple process that the public has been taught to fear by those wanting to sell them “probate alternatives.” These so-called “probate alternatives” are always more complex and more time-consuming than probate and are rarely less expensive.
What is probate?
Probate is the legal process that transfers the assets of a deceased person to living persons. Probate is usually handled by the court in the county where the deceased resided at the time of death.
When is probate needed?
Probate is not needed if the deceased only owns bank accounts & property jointly with a living person. Therefore, a married couple who own all their assets jointly will not need a probate proceeding when the first spouse passes away. Probate is necessary to transfer the deceased’s property when any kind of valuable property is held in his or her sole name. If a person passes away leaving just a few personal belongings & household goods, these can be distributed without a probate proceeding. Therefore, a married couple who own all their assets jointly will not need a probate proceeding when the first spouse passes away.
How long does probate take?
Probate can be, and should be, started immediately after death. If the deceased had a will, the person named as “personal representative” (aka: executor) is obligated to start the probate process. If the deceased died without a will, a close relative should start the process. An experienced attorney can finalize a simple probate in five to seven months. If property must be sold during probate, or there are complicated tax matters, probate can take a little longer. Few probates take longer than a year. If funds are needed by a beneficiary, the court can make a partial distribution of probate funds or property before the end of the probate process. The Oregon statutes have an expedited process for small estates that takes just over four months.
What is a “small estate” proceeding?
A small estate proceeding applies if the deceased owns total assets valued at $200,000 or less. To remain under this figure the real property cannot be valued at more than $150,000 and the personal property cannot be valued at more than $50,000. Personal property includes everything that is not real property.
Do I need an attorney to help me with my relative’s probate?
Probate in Oregon is not complicated (unless the assets and debts are complex) but involves a good deal of paperwork that must be filed in a timely manner. To prepare the proper documents at the right time, and to ensure that all property is properly transferred, you need a probate attorney.
What are the costs of probate?
The Court filing fee is a percentage of the value of the deceased’s assets. For example, the Court charges $248 for a $50,000 estate, $448 for a $500,000 estate, and $648 for a $3,000,000 estate. An attorney will charge by the hour and the court must approve the fees before the attorney is paid.
What happens to my assets if I die without a will?
The assets that you own in your sole name will be distributed via Oregon statutes. How your estate is distributed depends upon your marital status and the status of your blood relatives.
Here are a few examples:
- If you are single and have children, each child will receive an equal share of your entire probate estate.
- If you are married, with or without joint children, your spouse will receive your entire estate.
- If you are married, but your children are from another marriage, your spouse receives one-half of your estate and your children receive one-half.
- If you die single, leaving no children or grandchildren, your surviving parent(s) will receive your entire estate. If your parents and grandparents are already deceased, and you are unmarried, your brothers and sisters will each receive equal shares of your estate.
Statutory distribution does not take into account whether or not you ever MET the relatives that will inherit. Indeed, your least favorite relative could wind up with all or part of your estate. Only by signing a will can you be assured that people you love will receive your assets.
When should probate be started?
Probate can and should be started within a few weeks after the person has passed away. The person named as personal representative (executor) in the will is responsible for protecting the deceased’s assets, so he or she will want to begin the process promptly.
How is probate started?
Probate begins by filing a petition with the Circuit Court in the county where the deceased lived at the time of death or where the deceased owned property. The will is attached to the petition when it is filed with the court. The court will appoint the person named in the will as personal representative (executor) to serve without bond. (The named person is allowed to decline.) If there is no will, a relative or close friend will ask the court to be appointed personal representative. The court will normally grant the request and require the personal representative to obtain a bond.
What are the duties of the Personal Representative?
The personal representative is called “executor” in most other states. He or she is the person who handles the deceased’s affairs. With the deceased’s funds, the executor pays the final expenses of the deceased, collects money that is owed to the deceased, prepares the required tax documents, and pays the deceased’s taxes. Oregon statutes provide for a generous fee for the executor, which is based upon the value of the estate. The deceased may provide for an additional fee for the executor in the will.
What steps take place during the probate process?
After the executor is appointed by the Court, a notice to creditors is published in a local newspaper. This notice tells creditors that they have four months to bring any claim against the probate estate for debts owed by the deceased. The executor also gives written notice to all known creditors. Heirs (as defined by Oregon statute), as well as the people & organizations named in the will, are notified of the probate proceeding. The executor ascertains what assets the deceased owns and their approximate values, and files an inventory with the court. If funds are needed, the executor may sell assets during the probate process. Four months after the notice is published in the newspaper, the executor can file a motion with the court to close the probate estate and distribute the net assets to the proper beneficiaries or heirs. If all the documents are in order, the court will grant this request within a few days. The executor’s final duties are to be sure beneficiaries or heirs receive all the deceased’s property, after known creditors are paid in full.
What does the Court do?
The court makes sure the will is valid and that the proper person receives the correct asset per the will. If there is no will, the court makes sure the heirs receive the assets pursuant to statute. The court also makes sure all the “interested persons” were notified about the probate, and that claims of creditors are settled. The court reviews the probate receipts to be sure that all expenses taken from probate funds were valid. These court duties are handled without a hearing. Normally, the probate process does not require a court hearing. A hearing will only be needed if a relative or creditor files an objection to how the probate is being handled, or to the validity of the will, and the dispute cannot be settled by discussions between the executor and the complaining person. Such disputes are relatively rare when the will has been properly drafted, and an experienced attorney is assisting the executor (Personal Representative).
Is it ever too late to start the probate process?
No. In 2000, this attorney handled the probate of an elderly lady who passed away in 1977. A probate was not filed in 1977 because the family members mistakenly believed that probate was not required. The deceased did not own any assets in her sole name other than a piece of undeveloped land on the Oregon coast. A relative paid the property taxes on this land all these years, and decided it was time to remove the deceased’s name from the property so that the deceased’s son and daughter could have title to the land.
Diane has been a probate attorney for Oregon City residents for 28 years. If you have lost a loved one, and have questions about transferring property, call Diane at 503-650-9662.